CONCLUSION
A legal pluralist approach enables us to stand back from normative debates over, for example, whether courts are included in the term ‘government,’ and instead to view the relationship between rights constitutionalism and private power in terms of how the former articulates with hegemonic or counter- hegemonic forces.
The first test that a counterhegemonic constitutionalism has to pass is to show that constitutional doctrine can be remade to subject private power to constitutional scrutiny. While the comparative jurisprudence shows that courts can move beyond a strict vertical approach, where rights are only exercised directly against state institutions, the cases also show that the courts operate within a broadly hegemonic politics of definition that inhibits them from seriously engaging with private power. Thus, while the more expansive ASI and LAW doctrine can insist that when the state acts to regulate private parties, it does so in a proportionate way, courts following these approaches do not, and as things stand, will not, require, for example, corporations to observe standards of environmental protection[825] or social equity.Thus, in terms of the relationship between rights constitutionalism and private power, we can say that at present there is limited scope for the courts to promote a counterhegemonic form of constitutional politics. However, there is more evidence that hegemonic forces are articulating with rights constitutionalism to further their interests. We can see this, for instance, through the global spread of rule of law reforms which reinforce the changing perception of the state from a redistributive forum to a mechanism for ensuring the efficient functioning of the market economy. Or, for that matter, by the infusion of jurisprudence with the values of consumerism,[826] which reflects the values of possessive-individualism through which the market economy thrives. The most important artefact of the successful articulation of hegemonic globalization with rights constitutionalism remains the state-civil society divide, which lies at the heart of the prevailing constitutional politics of definition.
This serves the crucial legitimating function of obscuring the broader constellation of law and political power—including corporate law-making and corporate political power—operating in society.[827] In this way, a politics of definition that equates law with state law, and constitutionalism with limits on state law, to the extent it takes hold in the political and legal imagination, is a powerful antidote to regarding corporations as sites of political power, and sources of constitutional law, which a critical approach to legal pluralism suggests they always have been.None of the foregoing should be taken as arguing that a hegemonic constitutionalism is inevitable or irreversible—this would be to commit the same error as regarding the prevailing form of economic globalization in similarly deter- minist terms. Indeed, we can see within the hegemonic jurisprudence discussed above, the kernel of a counter-movement. However, the legal pluralist focus on the politics of definition reveals the deep-rooted assumptions in judicial thought which prevent that kernel from growing and developing to become an effective constitutional check on private power. Accordingly, if we wish to move to a counterhegemonic version of constitutional politics, these assumptions have to be ‘unthought’.